Introduction to Third- Gender

WRITTEN BY- Richa Shukla


Transgenderism, a veiled concept which persists as much as it is alien to the society. The transgenders, who apart from lacking universal recognition, are not even treated like normal human being. This stigma is evident from the fact that we lack the primary understanding of the difference between sex and gender.
While sex refers to the biological differences, which is usually assigned at birth, gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female transgender or transsexual person, as dictated by Hon’ble Supreme Court itself.
Transgender in general terms can be considered an umbrella term for persons whose gender identity or gender expression does not confirm to their biological sex. In today’s era, while descriptor transgender has a broader sense curtailing lesbian, gays, bisexuals, queers etc., India is yet to accept their recognition even in the eyes of law.

Identity crisis:

Seldom, we as society realise or care to give a thought to the trauma, agony & pain the transgender community undergo. We have been dismissive of the basic fact that they are as human as us. Though, the community in the year 2014 was given recognition of Third Gender, distinguishing them from males and females in the landmark NLSA case , we fail to understand and appreciate their innate feelings, especially of those mind & body disown their biological sex. Society has been playing the role of deterrent, for this deviation has been unacceptable and terribly detesting to the vast majority. Endeavour to live a life with dignity is a dream too far. In spite of adoption of UDHR in 1948, that codes the inbred dignity, equality, respect and rights of all beings throughout the world, the transgender are denied basic human rights.

Deprivation of rights:

The majority overpowers the minority. Weaker section takes the back seat while the front seats are snatched away by the stronger. Superiority of the privileged portion is neither a fictional tale, nor new to the world. The scenario doesn’t shift a bit in the case of members of transgender group as well. There is universal acknowledgement of the fact, much obvious, that human rights belong to every person born on the earth irrespective of any categorisation and specification of the individual.

The fundamental rights given to every citizen of the nation by the Constitution also echo the foundational human rights. The dexterity of law framers can be manifested, if the words so carefully construed are on the focus. Article 21 reads as “No person shall be deprived of his life…”. The word ‘person’ makes this expression gender neutral. Similarly the usage of terms like ‘person’, ‘citizen’ and ‘sex’ in the fundamental rights under Article 14, 15, 16, 19 portray the intention that these rights enshrined on the citizen of the country irrespective of their gender. Thus, the third gender has always been curtailed within the ambit of these rights. Article 21, the heart and soul of the Indian Constitution, takes all those aspects of life, vital to make it meaningful. Protection of dignity of human life, one’s personal autonomy, one’s right to privacy etc. are at the rim of its bucket. Gender identity constitutes the core of the one’s sense of being as well as an integral part of person’s identity and lies at the heart of fundamental right to dignity.

Transgenders have been deprived and despised of every kind of social and cultural participation; which further results in restricted access to education, health care and public places. NLSA case gave a firm voice to the rights of this community and instructed the State to take requisite action for the purpose of establishment of their welfare and equal treatment like the other two genders. The Hon’ble Bench went to the extent of saying that this community must be taken care of like SC, ST and untouchables in order to avail them the social position they deserve, considering the inhumane behaviour they have facing which goes back to Victorian era. The Criminal Tribe Act, 1871 has given most of the wounds to the transgenders, wherein the entire community of Hijra’s were considered ‘innately criminals’.

Though the act was struck off after independence, in true sense it only took the form of Section 377 under IPC, 1860, which criminalises homosexuality as a whole. Though the recent judgement, revitalizing the Right to Privacy, works as a soothing balm and gives the members of LGBTQ certain level of relief and a hope that optimism that we are one step closer to striking down Section 377.

No statutory law yet:

Constitution has fulfilled its duty of providing rights to transgender. However, there is no statutory regime as yet recognizing third gender. Though, The Transgender Persons( protection of rights) Bill, 2016 is in the queue to be enacted and is committed to protect their rights, the need of personal laws to facilitate marriage, divorce, succession, parentship etc. is yet to be fulfilled.

It is an irony that the society expects them to be civilized and well- mannered, while we simply refuse to accept them as a part of society, as much as us. Forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender and expressions, a mind-set which we have to change.

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